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The Aborted Contract Essay, Research
Paper

Sam Vaknin’s
Psychology, Philosophy, Economics and Foreign Affairs Web SitesThe
issue of abortion is emotionally loaded and this often makes for
poor, not thoroughly thought out arguments. The questions: “Is
abortion immoral” and “Is abortion a murder” are often
confused. The pregnancy (and the resulting foetus) are discussed in
terms normally reserved to natural catastrophes (force majeure, in
legal lingo). At times, the embryo is compared to cancer: after all,
they are both growths, clusters of cells. The difference, of course,
is that no one contracts cancer willingly (except, to some extent,
smokers –but, then they gamble, not contract). When a woman engages
in voluntary sex, does not use contraceptives and gets pregnant –
one can say that she signed a contract with her foetus. A contract
entails the demonstrated existence of a reasonably (and reasonable)
free will. If the fulfilment of the obligations in a contract could
be life-threatening – it is fair and safe to assume that no
rational free will was involved. No reasonable person would sign or
enter such a contract. Judith Jarvis Thomson argued convincingly (”A
Defence of Abortion”) that pregnancies that are the result of
forced sex (rape being a special case) or which are life threatening
should or could, morally, be terminated. Using the transactional
language : the contract was not entered to willingly or reasonably
and, therefore, is null and void. Any actions which are intended to
terminate it and to annul its consequences should be legally and
morally permissible.

The same goes
for a contract which was entered into against the express will of one
of the parties and despite all the reasonable measures that the
unwilling party adopted to prevent its crystallization. If a mother
uses contraceptives in a manner intended to prevent pregnancy, it is
as good as saying: I do not want to sign this contract, I am doing my
reasonable best not to sign it, if it is signed – it is contrary to
my express will. There is little legal (or moral) doubt that such a
contract should be voided. Much more serious problems arise when we
study the other party to these implicit agreements: the embryo. To
start with, it lacks consciousness (in the sense that is needed for
signing an enforceable and valid contract). Can a contract be
validated even if one of the “signatories” lacked this sine qua
non trait? In the absence of consciousness, there is little point in
talking about free will. So, is the contract not a contract at all?
Does it not reflect the intentions of the parties?

The answer is in
the negative. The contract between a mother and her foetus is derived
from the larger Social Contract. Society – through its apparatuses
– stands for the embryo the same way that it represents minor, the
mentally retarded and the insane. Society steps in – and has the
recognized right and moral obligation to do so – whenever the
powers of the parties to a contract (implicit or explicit) are not
balanced. It protects small citizens from big monopolies, the
physically weak from the thug, the tiny opposition from the mighty
administration, the barely surviving radio station from the claws of
the devouring State mechanism. It also has the right and obligation
to intervene, intercede and represent the unconscious : this is why
euthanasia is absolutely forbidden without the consent of the dying
person. There is not much difference between the embryo and the
comatose.

A contract
states the rights of the parties. It assumes the existence of parties
which are “moral personhoods” or “morally significant persons”
– in other words, persons who are holders of rights and can demand
from us to respect these rights. The contract explicitly elaborates
some of these rights and leaves others unmentioned because of the
presumed existence of the Social Contract. The contract assumes that
there is a social contract which includes the parties to the contract
and which is universally known and, therefore, implicitly
incorporated in every contract. Thus, an explicit contract can talk
about the right of a person to a certain property but it will fail to
mention that person’s rights to life, free speech, enjoying the
lawful fruits of his property and, in general to a happy life. There
is little debate that the Mother is a morally significant person and
that she is a rights-holder. All born humans are and, more so, all
adults above a certain age. But what about the unborn foetus? One
approach is that the embryo has no rights until certain conditions
are met and only upon their fulfilment is he transformed into a
morally significant person. Opinions differ as to what are the
conditions rationality, a morally meaningful and valued life are some
of the oft used criteria. The fallibility of this venue is easy to
demonstrate: children are irrational – is this a licence to commit
infanticide? A second approach says that a person has the right to
life because he desires it.

But then what
about chronic depressives who desire to die – do we have the right
to terminate their miserable lives? The good part of life (and,
therefore, the differential and meaningful test) is in the experience
– not in the desire to experience. Another variant says that a
person has the right to life because once his life is terminated –
his experiences will cease. So, how should we judge the right to life
of someone who constantly endures bad experiences (and, as a result,
harbours a death wish)? Having reviewed the above arguments and
counter-arguments, Don Marquis goes on (in “Why Abortion is
Immoral”, 1989) to offer a sharper and more comprehensive
criterion: terminating a life is morally wrong because a person has a
future filled with value and meaning, similar to ours. But the whole
debate is unnecessary. There is no conflict between the rights of a
Mother and those of her foetus because there is never a conflict
between parties to an agreement. By signing an agreement, the Mother
gave up some of her rights and limited the other. This is normal
practice in contracts: they represent compromises, optimization –
not maximization. The rights of the foetus are an inseparable part of
the contract which the mother signed voluntarily and reasonably. They
are derived from the Mother’ s behaviour. Getting willingly
pregnant (or assuming the risk of getting pregnant by not using
contraceptives reasonably) – is the behaviour which validates and
ratifies a contract between her and the foetus. Many times contracts
are the result of behaviour and witnessed by it, rather than by a
piece of signed paper. Numerous contracts are verbal or behavioural.
Other contracts, though implicit, are as binding as any of their
written counterparts. Legally (and morally) the situation is crystal
clear the Mother signed some of her rights away in this contract.
Even if she regrets it – she cannot claim her rights back by
annulling the contract unilaterally. No contract can be annulled this
way – the consent of both parties is required. Many times we
realize that we have entered a bad contract, but there is nothing
much that we can do about it. These are the rules of the game.

Thus the two
questions: (a) can the contract be annulled and, if so (b) in which
circumstances – can be easily settled using modern contract law.
Yes, a contract can be annulled and voided if signed under duress,
involuntarily, or if one of the parties made a reasonable and full
scale attempt to prevent its signature, thus expressing its
inviolable will not to sign the contract. It is also terminated or
voided if it would be unreasonable to expect one of the parties to
see it through. Rape, contraception failure, life threatening
situations all are such cases.

This could be
argued against by saying that, in case of economic hardships, or
instance, the damage to the Mother’s future is certain. Her value
filled, meaningful future is granted – and so is the detrimental
effect that the foetus will have on it, once born. This certainty
cannot be balanced by the UNCERTAIN value-filled future life of the
embryo. Always, preferring an uncertain good to a certain evil is
morally wrong. But surely this is a quantitative matter – not a
qualitative one. Certain, limited aspects of the rest of the Mother’s
life will be adversely effected (and can be ameliorated by society’s
helping hand and intervention) if she does have the baby. The
decision not to have it is both qualitatively and qualitatively
different. It is to deprive the unborn of all the aspects of all his
future life – in which he might well have experienced happiness,
values and meaning.

The questions
whether the foetus is a Being or a growth of cells, conscious in any
manner or utterly unconscious, able to value his life and to want
them – are all but irrelevant. He has the potential to lead a
happy, meaningful, value-filled life, similar to ours, very much as a
one minute old baby does. The contract between him and his Mother is
a service provision contract. She will provide him with goods and
services that he requires in order to materialize his potential. It
sounds very much like many other human contracts. Take education:
children do not appreciate its importance or value its potential –
still, it is enforced upon them because we, who are capable of those
feats, want them to have the tools that they will need in order to
develop their potential. In this and many other respects, the human
pregnancy continues well into the fourth year of life
(physiologically it continues in to the second year of life). Is the
location of the pregnancy (in uterus, in vivo) to determine its
future? Why should the Mother be denied her right to terminate the
pregnancy after the foetus emerges and the pregnancy continues
outside her womb? Even after birth, the woman’s body is the main
source of food to the baby and, in any case, she has to endure
physical hardship. Why not extend the woman’s ownership of her body
and right to it further in time and space? Contracts to provide goods
and services (always at a personal cost to the provider) are the
commonest of contracts. We open a business. We sell a software, we
publish a book – we engage in helping others to materialize their
potential. We should always do so willingly and reasonably –
otherwise the contracts that we sign will be null and void. But to
deny anyone his capacity to materialize his potential and the goods
and services that he needs to do so – after a valid contract was
entered into – is immoral. To prevent a service or to condition it
(Mother: I will provide the goods and services that I agreed to
provide to this foetus under this contract only if and when I will
benefit from such provision) is a violation of the contract and
should be penalized. Admittedly, at times we have a right to choose
the immoral (because it has not been codified as illegal) – but
that does not turn it into a moral choice.

Still, not every
immoral act involving the termination of life can be classified as
murder. Phenomenology is deceiving: the acts look the same (cessation
of life functions, the prevention of a future). But murder is the
intentional termination of the life of a human who possesses, at the
moment of death, a consciousness (and, in most cases, a free will,
especially the will not to die). Abortion is the intentional
termination of a life which have the potential to develop into a
person with consciousness and free will. Philosophically, no identity
can be established between potential and actuality. The destruction
of paints and cloth is not tantamount (not to say identical) to the
destruction of a painting by Van Gogh, made up of these very
elements. Paints and cloth are converted to a painting through the
intermediacy and agency of the Painter. A cluster of cells a human
makes through the agency of Nature. Surely, the destruction of the
painting materials constitutes an offence against the Painter. In the
same way, the destruction of the foetus constitutes an offence
against Nature. But there is no denying that in both cases, no
finished product was eliminated. Naturally, this becomes less and
less so (the severity of the terminating act increases) as the
process of creation advances. Classifying an abortion as murder poses
numerous and insurmountable philosophical problems.

No one disputes
the now common view that the main crime committed in aborting a
pregnancy – is a crime against potentialities. If so, what is the
philosophical difference between aborting a foetus and destroying a
sperm and an egg? These two contain all the information (=all the
potential) and their destruction is philosophically no less grave
than the destruction of a foetus. The destruction of an egg and a
sperm is even more serious philosophically: the creation of a foetus
limits the set of all potentials embedded in the genetic material.
The egg and sperm can be compared to the famous wave function (state
vector) in quantum mechanics – incorporating millions of potential
states. The foetus is the collapse of the wave function: it
represents a much more limited set of potentials. If killing an
embryo is murder because of the elimination of potentials – what
should we say about the intentional elimination of many more
potentials through masturbation and contraception?

The argument
that it is difficult to say which sperm cell will impregnate the egg
is not serious. Biologically, it does not matter – they all carry
the same genetic content. Moreover, would this counter-argument still
hold if, in the future, we will be able to identify the chosen one
and eliminate only it? In many religions (Catholicism) contraception
is murder. In Judaism, masturbation is “the corruption of the seed”
and such a serious offence that it is punishable by the strongest
religious punishment: eternal ex-communication (”Karet”).

If abortion is
indeed murder what should be the answers to the following moral
dilemmas and questions (some of them patently absurd): Is a natural
abortion the equivalent of manslaughter (through negligence)? Do
habits like smoking, drug addiction, vegetarianism – infringe upon
the right to life of the embryo? Do they constitute a violation of
the contract?

Reductio ad
absurdum: if, in the far future, research will unequivocally prove
that listening to a certain kind of music or entertaining certain
thoughts seriously hampers the embryonic development – should we
apply censorship to the Mother?

Should force
majeure clauses be introduced to the Mother-Embryo pregnancy
contract? will they give the mother the right to cancel the contract?
Will the embryo have a right to terminate the contract? Should the
asymmetry persist: the Mother will have no right to terminate – the
embryo will or vice versa?

Being a rights
holder, can the embryo (=the State) litigate against his Mother or
Third Parties (the doctor that aborted him, someone who hit his
mother and brought about a natural abortion) even after he died,
living no heirs (except the plaintiffs)?

Should anyone
who knew about an abortion be considered an accomplice to murder?

If abortion is
murder – why punish it so mildly? Why is it that there is a debate
raging on regarding this question? “Thou shalt not kill” is a
natural law, it appears in virtually every legal system. It is easily
and immediately identifiable. The fact that abortion does not “enjoy”
the same treatment says a lot.

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